[00:00:00] Speaker 02: Their second argument is an appeal number 21-1826, BLSI Technologies versus Intel. [00:00:10] Speaker 02: Mr. Lowenstein? [00:00:11] Speaker 03: Good morning, your honor. [00:00:14] Speaker 03: May it please the court? [00:00:15] Speaker 03: I'm joined by my colleague, Collette Wu. [00:00:17] Speaker 03: We have two errors of claim construction from the board on the docket. [00:00:22] Speaker 03: I would like to start with the second issue first in the interest of time. [00:00:25] Speaker 03: So the claim says, being used for electrical interconnection. [00:00:30] Speaker 03: The board's instruction is an error because it found that that limitation being used for electrical interconnection can be met by something that has no electrical use at all. [00:00:42] Speaker 03: You have in Kenoka M1 and M2, which are completely surrounded by dielectric material. [00:00:47] Speaker 03: No electricity can travel to it or from it. [00:00:50] Speaker 02: Kenoka says that those metal lines are electrically connected. [00:00:55] Speaker 02: I mean, that's the exact quoted phrase from Kenoka, right? [00:00:59] Speaker 03: You're correct. [00:01:00] Speaker 02: So I guess your view is electrically connected doesn't always mean electrically connected. [00:01:07] Speaker 03: I think it's a translated patent and is using [00:01:10] Speaker 03: language in an odd fashion. [00:01:11] Speaker 03: But here's what it means. [00:01:13] Speaker 03: We gave an analogy in our briefing. [00:01:14] Speaker 03: They did not dispute it. [00:01:16] Speaker 03: It's like, if I had a towel, had two pennies in the towel on top of each other, and I close it up, Kanaoka would say that's electrically connected. [00:01:25] Speaker 03: Because I have two conductive pieces of metal touching each other, even though there are obviously, there's no electrical use. [00:01:31] Speaker 03: To provide a different analogy, about a wobbly table at one of the legs is not quite as long. [00:01:36] Speaker 03: I stack some pennies underneath it. [00:01:38] Speaker 03: Kanaoka would say that's electrically connected. [00:01:40] Speaker 03: Obviously, whether it is or not, it's not being used for electoral interconnection. [00:01:46] Speaker 03: So you're absolutely right, but it's an odd use of language, let's say. [00:01:55] Speaker 02: Maybe you can walk through your sources for why [00:02:03] Speaker 02: a claim construction for being used for electrical interconnection demands that there's actually these metal interconnect layers are actually designed for conducting electricity? [00:02:20] Speaker 03: You mean in the context of the claim, of course, right? [00:02:22] Speaker 03: Yeah, so I would say, first of all, starting with the plain meaning of the claim, it says being used for electrical interconnection. [00:02:28] Speaker 03: So I would say the case could be decided [00:02:30] Speaker 03: on that point, not the case, but the claim instruction issue. [00:02:33] Speaker 03: Relying principally on the verb used. [00:02:36] Speaker 03: Used for, yes. [00:02:37] Speaker 03: Being used for. [00:02:38] Speaker 03: And now your honors have cases where you say, you have plenty of cases where you require a national purpose. [00:02:45] Speaker 03: You have cases where you say the structure has to be configured for a particular purpose. [00:02:48] Speaker 03: You have cases where you say it has to be capable of a particular purpose, usually dictated by the language of the claim. [00:02:54] Speaker 03: Here it says used for. [00:02:55] Speaker 03: Whichever one of those, it has to mean something. [00:02:58] Speaker 03: And whichever one of those three [00:03:00] Speaker 03: means of considering a claim it is, Kanaoka does not need it, because it's not capable of electrical use, it's not configured for electrical use, and it's certainly not used for electrical internet connection. [00:03:12] Speaker 03: And you don't need to get into the thorny factual question of what does Kanaoka actually do. [00:03:17] Speaker 03: All you need to decide is that we argued that Kanaoka has no electrical use based on Kanaoka's teaching, and the board said we don't care. [00:03:25] Speaker 02: That's irrelevant under our claim instructions. [00:03:27] Speaker 02: I saw that your claim 20 also has a separate limitation about adding dummy metal lines. [00:03:33] Speaker 02: And it seems like Kenoka's metal lines, M1, M2, are in fact dummy metal lines. [00:03:41] Speaker 02: And so is there an inference here with the recitation of dummy metal lines and the claim that whatever is going on here with this used for electrical interconnection for the interconnect layers can't possibly be dummy metal lines themselves? [00:03:57] Speaker 03: I think that's a reasonable inference. [00:03:58] Speaker 03: I haven't fully assessed it in quite that way, but that certainly sounds very reasonable to me. [00:04:03] Speaker 03: And it's in keeping with the specification as a whole. [00:04:06] Speaker 03: So if you look at the background of the invention, it says, in the prior art, you had these dummy layers for interconnects with vias to support the structure of the bond pad and even where there's no connectivity going on. [00:04:21] Speaker 03: And one of the principal advantages [00:04:23] Speaker 03: of our patent, it's at the bottom of column three of getting a column four, is that you can make each of them by interspersing double metal lines, increasing the density. [00:04:32] Speaker 03: You can allow each layer of the metal interconnect to be functionally independent, not only from the bottom pad above, but from each other. [00:04:38] Speaker 00: Is there any, taking a step back from the specific language used in the patents, is there any magic to, given the justification for having these [00:04:52] Speaker 00: chunks of metal in the middle of the force region. [00:04:56] Speaker 00: Is there any reason that it's useful that they be electrically conductive, or is it simply the fact that they strengthen the area beneath the bond pad so that it resists crushing from the adhesive force? [00:05:16] Speaker 03: So I think there are two different issues in our patent. [00:05:21] Speaker 03: The bulk of the teaching is not really before your honors, but the bulk of the teaching is you're putting dummy filler throughout layers of the... Right, I understand that. [00:05:29] Speaker 00: And you want to strengthen the structure. [00:05:33] Speaker 00: I understand that. [00:05:34] Speaker 00: But suppose you were strengthening the structures that matter, whether you're strengthening it with something that's conductive as opposed to non-conductive, since they're not doing any conducting. [00:05:42] Speaker 03: I would say it's not the question of whether it's conductive or not. [00:05:44] Speaker 03: Because I'm not talking about the dummy metal. [00:05:46] Speaker 03: I'm talking about what our patent says is the advantage of adding this dummy metal is it allows you to use these metal interconnect layers that used to be there just for structural support like you find in Kanaoka. [00:05:59] Speaker 03: And so the principal benefit, one of the substantial benefits, I think it says something like that, is you allow each of the interconnects to use independent of the bond pad and independent of each other because you have the support sufficiently elsewhere. [00:06:11] Speaker 03: So it is an advantage of the patent that you can use, electrically use, each layer independently. [00:06:19] Speaker 03: When you say electrically use. [00:06:20] Speaker 03: Yes. [00:06:21] Speaker 03: In what sense are they being electrically used? [00:06:25] Speaker 03: We're not Kanaoka. [00:06:27] Speaker 03: Kanaoka, there is no electrical use at all. [00:06:29] Speaker 03: What our patent says is you can remove the vias between these layers, because if you have vias between the layers and up to the bond path, it's just going to be one pathway. [00:06:39] Speaker 03: Right. [00:06:40] Speaker 03: And so what our patent says is if you find sufficient support by adding dummy metal elsewhere in the surrounding areas, [00:06:49] Speaker 03: You can now take out the vias and use these layers for actual electrical purposes. [00:06:58] Speaker 03: And that's what's capturing the flame. [00:06:59] Speaker 02: Can you give an example of what that would be? [00:07:01] Speaker 02: What would be an electrical purpose for using these interconnect layers? [00:07:05] Speaker 03: So I think you have things about in line with the bond pad. [00:07:08] Speaker 03: So what our patent allows is because you remove the vias, [00:07:11] Speaker 03: You can have pathways that extend to, let's say, the neighboring bond pad. [00:07:15] Speaker 03: So you would have an electrical use not connected to the bond pad. [00:07:18] Speaker 03: And I'm not saying that the claim has to be that the two layers are not electrically connected, so long as there is an electrical use. [00:07:25] Speaker 03: But I'm saying an advantage of the patent, the teachings of the patent, is that they can be independent of the bond pad and independent of each other. [00:07:34] Speaker 03: Are there any other questions? [00:07:35] Speaker 03: Or should I turn to the force region issue? [00:07:39] Speaker 03: Okay. [00:07:40] Speaker 03: You're about the Forest Region. [00:07:41] Speaker 03: So, okay. [00:07:41] Speaker 03: Forest Region, I think, again, we have several errors of claim construction. [00:07:47] Speaker 03: And there's actually fairly little dispute on some of the issues before, Your Honors. [00:07:52] Speaker 03: So the regulation is clear. [00:07:54] Speaker 03: If we timely submit a claim construction determination from a district court, the Board must consider it. [00:08:00] Speaker 03: There is no dispute that the preamble and the trial practice guide [00:08:04] Speaker 03: should be followed here. [00:08:05] Speaker 03: They don't just get it. [00:08:06] Speaker 03: They don't say it's not allowed deference. [00:08:07] Speaker 02: What if we conclude that as a functional de facto matter, the board did consider the district court claim construction when it considered Intel's proposed construction, which was identical to the district court's construction. [00:08:22] Speaker 02: And then after looking at it and evaluating it in light of the intrinsic evidence, the board simply said, well, we understand that [00:08:32] Speaker 02: There's this one statement in the spec that suggests that the notion of a diatat should be involved with the claim construction, but we think, in fact, that's just a single embodiment, and that's an overly narrow choice to make for claim construction for forest region. [00:08:47] Speaker 02: And there are other statements in the specification. [00:08:49] Speaker 02: that lead us to conclude that it needs to be something broader. [00:08:52] Speaker 02: By doing that kind of evaluation of the entire patent, it seems to me that given that the district court's construction was proposed and it was evaluated and then ultimately rejected, that the board did in fact consider and then declined to adopt the district court construction. [00:09:13] Speaker 03: So there's a lot of responses to that. [00:09:14] Speaker 03: I'll try to [00:09:15] Speaker 03: uh, wrap it all together. [00:09:18] Speaker 02: So I guess what would be the point for the board to say, and by the way, the construction that's being proposed by Intel is, was a construction that a district court adopted at Markman. [00:09:28] Speaker 03: So I think from the board's perspective, there is a very, very different, uh, thing between a party's claim construction and a district court's claim construction determination. [00:09:39] Speaker 03: And so the board has many errors in force region. [00:09:42] Speaker 03: One of which is it did not consider address or give appropriate weight to the distribution, but it also did not mention that both parties agreed with that determination. [00:09:53] Speaker 03: And so the whole purpose of that regulation, but it was aware of that construction, right? [00:10:01] Speaker 01: It was the one we done by Intel. [00:10:03] Speaker 03: It was aware of Intel's construction. [00:10:06] Speaker 03: I don't know that it was, it was aware or considered. [00:10:09] Speaker 03: the district court's determination that that was the correct construction. [00:10:12] Speaker 03: And it also did not say that we agreed with that construction. [00:10:17] Speaker 03: And so you have a situation where both parties, I'm not sure if I, did I answer your question? [00:10:20] Speaker 02: Well, I'm, I'm just trying to understand if, if you're, you're being overly technical with some requirement that the board actually has to say that this one proposed construction was the district court's construction in this one market. [00:10:35] Speaker 01: i don't think so because the whole point of that role they rejected the construction though i mean isn't the whole point of that regulation is if the if the claim has been construed in district court litigation the board has to at least consider that construction before writing at a different one but they did consider that construction here and they arrived at a different one you may have better arguments about why that one's incorrect but they clearly considered the district court construction [00:11:04] Speaker 03: I agree with everything you said for the last three words. [00:11:09] Speaker 01: Is the construction that was proposed by Intel, in this case, identical to the district-wide construction? [00:11:14] Speaker 01: Yes. [00:11:15] Speaker 01: And they considered Intel's construction and rejected it. [00:11:18] Speaker 01: They considered it as Intel's construction. [00:11:20] Speaker 01: But that's where you're being overly technical. [00:11:22] Speaker 01: I mean, I think you're basically saying they got to check off the box and say, we knew this was a district court's construction and we reject it. [00:11:31] Speaker 01: But the whole point of this is just so that when there's claim construction going on in district courts, that the board be aware of the claim construction and provide a reason why it's not going to adopt it. [00:11:43] Speaker 01: It did all of that here. [00:11:44] Speaker 01: I just didn't add the sentence that said, oh, by the way, we know the district court adopted a different one. [00:11:50] Speaker 01: Well, who cares? [00:11:51] Speaker 01: We know why they adopted the claim construction they did, and we know they disagreed with the one that the district court adopted. [00:12:02] Speaker 01: I mean, again, you may have good arguments about why the board's want is to... Well, maybe I should, in the interest of time, maybe I should turn to that. [00:12:10] Speaker 03: Yeah, maybe. [00:12:12] Speaker 00: Before you do, let me just straighten out something that may be a misapprehension on my part, but very quickly. [00:12:19] Speaker 00: Earlier, I think you said that it was not clear whether the district court's claim construction had been presented at any point to the board as the district court's claim construction. [00:12:31] Speaker 00: Did I misunderstand you? [00:12:33] Speaker 00: Yeah, that's not what I meant. [00:12:34] Speaker 00: So the district court's claim construction, the board was aware [00:12:38] Speaker 00: of what, number one, what the claim construction was, and number two, that the district court had adopted it, correct? [00:12:44] Speaker 00: I can't make that inference. [00:12:45] Speaker 00: All I can say is, yes. [00:12:48] Speaker 00: I say aware. [00:12:49] Speaker 00: Was that fact presented to the board in some of the briefings? [00:12:53] Speaker 00: Many times. [00:12:54] Speaker 00: Many times. [00:12:54] Speaker 00: So the board was, at least we'll assume the board was aware, constructively aware. [00:12:59] Speaker 00: They should have been aware. [00:13:00] Speaker 03: But they should have addressed it under power integrations. [00:13:02] Speaker 03: And they should have. [00:13:03] Speaker 00: All right. [00:13:03] Speaker 00: So your argument is that what they should have had is a footnote saying, [00:13:08] Speaker 00: that this construction was adopted by the district court. [00:13:13] Speaker 03: No, no, they should have assigned it appropriate way. [00:13:15] Speaker 03: It's not a de novo review for the board. [00:13:17] Speaker 03: And we think it is entitled to no weight because we think it's wrong. [00:13:21] Speaker 03: That footnote would satisfy you. [00:13:22] Speaker 03: Well, there's supposed to be factors that they're supposed to consider in both the preamble and the trial practice guide. [00:13:27] Speaker 03: And there's no dispute that the factors weigh in favor of keeping the district court construction. [00:13:32] Speaker 03: But in the interest of time, I may move on to the issue Judge Hughes went to, which is that clearly their construction is wrong under Amherst. [00:13:45] Speaker 03: It just repeats something that's in the claim. [00:13:48] Speaker 03: If you adopted their construction, it would take up the workforce region. [00:13:53] Speaker 03: a region at least directly under the bond pen, at least directly under the bond pen. [00:13:55] Speaker 02: Before we get into the merits of the claim construction, assume for the moment we agree with that claim construction. [00:14:03] Speaker 02: Then does that just mean it's an affirm? [00:14:09] Speaker 03: I would urge you to reach a different conclusion for two reasons. [00:14:12] Speaker 03: The first is, if you reach that conclusion, the regulation of trial practice to guide the preamble becomes tabular. [00:14:18] Speaker 03: It's a what? [00:14:19] Speaker 03: You got a dead left. [00:14:20] Speaker 03: Okay, put that to the side. [00:14:21] Speaker 03: Okay, let's put that to the side. [00:14:22] Speaker 03: I have a second argument, which is under SAS, quoting Kalika, Magnum Oil, the petition, guides to the petition, where it's an undisputed claim construction, particularly one that the district court adopts. [00:14:34] Speaker 03: And both parties are urging the board to adopt that construction. [00:14:38] Speaker 03: There should be no basis for the board to reach a different conclusion. [00:14:42] Speaker 03: That thing can consist of a SAS, [00:14:44] Speaker 03: Which says, look, you can't pick some closer. [00:14:46] Speaker 02: Let me get, you're making the argument that if both sides are proposing the same construction. [00:14:55] Speaker 02: the board is not allowed to consider a different construction that it believes is the actual correct construction. [00:15:03] Speaker 02: It is barred from considering, let's assume for the moment, for my hypothetical, that the board knows what the real construction should be, but nevertheless is required and bound to follow what the two parties propose to be the construction, even though it's wrong. [00:15:22] Speaker 03: So your rule is a little bit stronger than what I would have proffered, which is that not that they're precluded, we can't predict all cases and all circumstances that may come up or strange circumstances under the sun. [00:15:34] Speaker 03: Maybe a party does something that affirmatively contradicts the, you know, there are all kinds of things that can happen, but certainly there ought to be a very good reason to deploy. [00:15:42] Speaker 02: What is the very good reason is that the construction that the two parties landed on is wrong. [00:15:49] Speaker 03: I still think under, not to repeat myself, but I still think under the trial practice guide and the preamble, they had to assign an appropriate weight. [00:15:56] Speaker 01: No, no, no. [00:15:57] Speaker 01: I don't think we're talking about the district court stuff anymore. [00:16:00] Speaker 01: Even if you agreed in the petition, I know that's where you agree, but even if you agree [00:16:06] Speaker 01: Let's say the petitioner proposes something. [00:16:09] Speaker 01: You respond and say, yeah, that's OK. [00:16:11] Speaker 01: And then the PTAB says, no, you're both wrong. [00:16:15] Speaker 01: Here's the correct construction. [00:16:17] Speaker 01: Are you saying they can't do that? [00:16:19] Speaker 03: I think that's the logical conclusion I draw off from Sass, Koninklick, and Magnamore. [00:16:23] Speaker 01: Where in any of those cases does that say that? [00:16:25] Speaker 01: I mean, the whole point of the PTAB is to take another look at validity. [00:16:30] Speaker 01: And if their hands are tied by improper claim constructions, just because you two have agreed to it, then they're going to get to the wrong in validity decision, aren't they? [00:16:38] Speaker 03: So I may not be aware of it, but [00:16:41] Speaker 01: i don't believe this one which in in magnum oil or those cases to say that the p tab is bound by the party's agreement i thought those cases were about the board coming up with new claim constructions for the first time and not giving you all an opportunity to respond don't shake your head no no no what i mean is we're not making into property please show me in those cases where it says the board is bound by an agreed upon claim construction [00:17:10] Speaker 03: So I don't think it's, what I'm arguing is it's a logical extension from the reasoning of those cases. [00:17:15] Speaker 03: I didn't mean to be intemperate. [00:17:18] Speaker 03: What SAS says is the petition's driving everything. [00:17:22] Speaker 01: And what Conan Kalika says- But we said in other cases that the board is allowed to come up with the new claim construction as long as it gives the parties notice. [00:17:30] Speaker 01: So how is your logical extension consistent with those cases? [00:17:34] Speaker 03: Because I don't believe this court has ever held, and I'm sorry if I'm not aware of it, where there's an [00:17:40] Speaker 03: undisputed claim construction that it's appropriate for the board to reach. [00:17:45] Speaker 03: And if you look at a lot of the language, it's about disputed claim construction. [00:17:49] Speaker 00: You wouldn't argue that that's true of a district court claim construction, right? [00:17:54] Speaker 00: In other words, if the parties agree on a claim construction, the district court says, I think you're both wrong. [00:17:58] Speaker 00: Here's the claim construction. [00:18:00] Speaker 00: You're not arguing the district court is disabled from doing that. [00:18:03] Speaker 03: Well, that [00:18:04] Speaker 03: My argument would not follow to the district court because the precedents I'm citing are all specific. [00:18:08] Speaker 00: Well, I understand. [00:18:09] Speaker 00: But I'm trying to see how broad this proposition is, whether it's somehow limited to things the board can't do that a district court could do, or whether you're saying, well, the district court couldn't do it either. [00:18:21] Speaker 03: No, my argument is not intended to extend to the district court. [00:18:26] Speaker 03: And I don't believe logically. [00:18:27] Speaker 03: And then so what's the difference? [00:18:28] Speaker 00: Because SAS. [00:18:30] Speaker 00: But setting aside, we'll have to. [00:18:32] Speaker 00: look at those cases. [00:18:33] Speaker 00: But setting aside the citation of cases, is there any principled basis for distinguishing what the district court can do in this setting versus what the board can do in this setting, assuming, as Judge Hughes has said, that there's due process opportunity to contest the claim. [00:18:49] Speaker 03: Yeah, just to be sure, I'm not arguing anything about due process. [00:18:51] Speaker 03: But I think there is a distinction fundamentally about IPRs. [00:18:55] Speaker 03: And where does it come from, that distinction? [00:18:57] Speaker 03: So what this court has held many times [00:19:01] Speaker 03: is the IPRs are a special breed. [00:19:02] Speaker 03: They move fast. [00:19:03] Speaker 03: You have to prove your case in the petition. [00:19:05] Speaker 03: That guides everything. [00:19:06] Speaker 03: It's not like a district court complaint. [00:19:10] Speaker 03: It's like the entire case in chief is the petition and the exhibits there, too. [00:19:16] Speaker 03: So you've got to prove your case in the petition. [00:19:18] Speaker 03: And what it follows is, look, if we disagree with the claim construction, then of course the board can find a different instruction. [00:19:25] Speaker 03: But if they say X, we say X, and the district court says X, [00:19:29] Speaker 03: How under, I know you have to go back to the cases, but how under those precedents can the board in this hyper, you know, hyper fast [00:19:39] Speaker 02: I guess the theory, the counter theory would be if at institution the board recognizes there is a claim construction problem with what the parties appear to have agreed upon as being a construction of a particular term, the board could identify that, reach a different claim construction, and then adjust and see if the existing [00:20:04] Speaker 02: unpatentability theory in the petition still can appropriately apply under the adjustment of the claim construction. [00:20:14] Speaker 02: So in fact, that's what happened here in the sense that the board, as I saw it in the institution, well, go ahead and respond to that before I get into the actual facts of this case. [00:20:26] Speaker 03: I see where you're going. [00:20:26] Speaker 03: And I will allow that what I'm arguing is a logical extension of existing law. [00:20:31] Speaker 01: But when you say logical existence of existing law, you mean your interpretation of those cases. [00:20:36] Speaker 01: There's nothing in the statutes or regulations that suggests that the board can't disagree with the parties on claim construction, right? [00:20:44] Speaker 03: Well, except in so far as SAS is. [00:20:48] Speaker 03: Not the cases. [00:20:50] Speaker 03: I know what SAS is. [00:20:53] Speaker 01: Assume we just disagree with your logical extension. [00:20:56] Speaker 01: There's nothing that suggests the board is bound in the statutes or the regulations. [00:21:04] Speaker 03: Well, except that the petition, again, that's what gets instituted. [00:21:09] Speaker 03: That's what gets tried. [00:21:10] Speaker 03: And as filtered through the analysis, [00:21:13] Speaker 03: That's what sets the stage for everything. [00:21:18] Speaker 01: The petition proposes a construction and the patent owner doesn't disagree that the board at institution can't still say we don't think this is the right construction to look at in determining validity. [00:21:31] Speaker 01: Here's the proper construction. [00:21:33] Speaker 01: Parties go out and address it under that. [00:21:35] Speaker 01: SAS doesn't prevent that, does it? [00:21:37] Speaker 01: SAS just prevented the board from partial institution and said you have to look at the petition. [00:21:43] Speaker 01: It didn't say you can't [00:21:45] Speaker 01: have a different claim construction in looking at the theories of invalidity. [00:21:51] Speaker 01: Where in SAS does it say that? [00:21:54] Speaker 03: Obviously, this specific question was not before the court in SAS. [00:21:57] Speaker 03: What SAS did say, and I don't mean to be a broken record, what SAS did say is the petition drives the entire life of the complaint. [00:22:05] Speaker 03: If you institute, you have to institute on everything. [00:22:07] Speaker 01: And so consequently, I mean, you take it up all your time on these technical arguments about why the board couldn't go beyond what it did and not even address whether the board's actual claim instruction was wrong and whether you have a different construction that makes any difference here. [00:22:24] Speaker 03: Well, I believe under Amaranth, clearly the board's construction is at best disfavored because it's just repeating something that's already in the claim. [00:22:34] Speaker 03: So you're ignoring the party's agreement and the district court you put in a redundant construction. [00:22:38] Speaker 02: It might be disfavored, but what if, after a review of the intrinsic evidence, it compels that result? [00:22:44] Speaker 02: There's nothing in patent law that prevents claim construction of a term from essentially being [00:22:54] Speaker 02: I don't know, a restatement of other words that are in the claim. [00:22:59] Speaker 03: Is that? [00:23:08] Speaker 03: Generally speaking, an ill-advised way to do claim construction, I think, is a fair statement of this law. [00:23:12] Speaker 02: But I mean, the claim term we're all talking about, a force region at least under the bond pad characterized by being susceptible to defects due to stress applied to the bond pad. [00:23:28] Speaker 02: I guess if I were to look at this intrinsic evidence of the spec and conclude [00:23:36] Speaker 02: that a force region is defined in this patent as being all of these very words in this claim limitation that follows the word force region, that is, a region at least under the bond pad characterized by being susceptible to defects due to stress applied to the bond pad, then wouldn't that result in an affirm here? [00:23:58] Speaker 02: Putting aside your technical arguments about the trial practice guide or SAS or something like that, [00:24:04] Speaker 03: So I think the way you phrased it, it's a tautology. [00:24:08] Speaker 03: So under the way you phrased it, the answer would probably be yes, as to the force region questions. [00:24:13] Speaker 03: However, I just want to make one point clear. [00:24:16] Speaker 03: If you find that the board can reach a new construction, particularly where the district court affirmed it, on its own, sues sponte, where there's no dispute, I do believe you'd be making new law in that direction. [00:24:29] Speaker 03: And so that's the only thing I would do. [00:24:30] Speaker 02: What if we read the institution decision? [00:24:34] Speaker 02: as having done two things with this force region. [00:24:38] Speaker 02: One was to analyze the patentability of the force region limitation in view of ODA under an understanding that force region merely requires it to be an area at least under the bond path. [00:24:51] Speaker 02: And then found, yep, ODA meets that understanding of the limitation. [00:24:57] Speaker 02: And then said, in addition, [00:24:59] Speaker 02: We also find that ODA meets this claim limitation under Intel's proposed construction, which has the diatonic part. [00:25:10] Speaker 02: In that way, the institution decision will have applied both of these two different understandings of the term force region in a way that puts everybody on notice [00:25:23] Speaker 02: that the board was thinking of this force region term in at least two different ways in terms of understanding what is the scope of that term, including the claim construction that it ultimately adopted. [00:25:36] Speaker 03: I'm not making any argument about notice or opportunity to respond. [00:25:38] Speaker 02: Right. [00:25:39] Speaker 02: So I guess the point is that the board's construction that it ultimately landed on was in play as soon as the institution decision came out, because it read the petition as proposing two different understandings of the claim term. [00:25:53] Speaker 03: So there are a lot of questions there. [00:25:55] Speaker 03: I think as to that last point, I don't think that's a plausible reading of the petition. [00:25:59] Speaker 03: And then the other thing that you- But it appears to be that's the way the board read the petition. [00:26:05] Speaker 03: Okay. [00:26:05] Speaker 02: Because it actually did perform the unpatentability analysis in light of that second understanding of course. [00:26:12] Speaker 03: I would agree with you that they did that. [00:26:14] Speaker 03: But what I would say is that is not a plausible reading of what the petition actually proposed. [00:26:19] Speaker 03: And that's because they were just covering their bases on an indefinite argument. [00:26:23] Speaker 03: that they made in the district court. [00:26:25] Speaker 03: They didn't want us to argue, well, you can't go forward with NIPR because you argued the claim was indefinite. [00:26:29] Speaker 03: They were just covering their bases on that. [00:26:31] Speaker 00: I have just a very quick question, a factual question. [00:26:35] Speaker 00: The term diattach is only used three times in the patent and never in a definitional sense. [00:26:42] Speaker 00: Is it your view that the term diattach includes forms of attachment to the bond pad [00:26:48] Speaker 00: that involve adhesion by force, compression, but not wire bonding? [00:27:00] Speaker 03: I think that's substantially correct. [00:27:02] Speaker 03: There's a very, almost the entire argument below, what's about whether a diet hatch, I'm sorry, a wire bond is a diet hatch. [00:27:10] Speaker 03: Yeah. [00:27:11] Speaker 03: reams of evidence on it. [00:27:12] Speaker 03: I didn't want to ask you guys to make a factual finding in the first instance on it. [00:27:18] Speaker 03: But I think it's very clear in the literature, at least from our view, that diattach is a separate and distinct process from a wire bond. [00:27:26] Speaker 00: And where is the line of distinction drawn between the two? [00:27:31] Speaker 03: Just quite simply, diattach is you're attaching the chip to the substrate. [00:27:36] Speaker 03: And then if it's a wire bonded package, you're attaching wires thereafter. [00:27:39] Speaker 00: So you're wrapping it with wires as opposed to having an adhesive or a pressure contact, right? [00:27:47] Speaker 03: I would disagree if it's a term wrapping and you're attaching, but yes. [00:27:52] Speaker 03: OK. [00:27:52] Speaker 03: Is that a question? [00:27:54] Speaker 03: Yeah, that answers my question. [00:27:55] Speaker 03: If there's nothing else, I'll save whatever time you guys have to pull out. [00:27:59] Speaker 02: OK, thank you. [00:28:01] Speaker 02: It is time to hear from the other side. [00:28:07] Speaker 04: Mr. Walden. [00:28:08] Speaker 04: Good morning, your honors. [00:28:09] Speaker 04: My name is Calvin Walden and with me at the council table today is Gregory Israelson and Vishal Amin from Intel's head of IP patent policy. [00:28:18] Speaker 04: He's here as well. [00:28:20] Speaker 04: So if it please the court, I'll start with the claim one and the force region issue. [00:28:27] Speaker 04: I want to just follow up from some of the questions that were just being asked of council about whether [00:28:33] Speaker 04: the Qualcomm case, the SAS case, the materials case really support this extension, the logical extension that counsel for VLSI is arguing for. [00:28:45] Speaker 04: And we submit that it doesn't. [00:28:47] Speaker 04: Qualcomm case simply stands for the proposition that the parties to an IPR need to have notice and an opportunity to be heard if the court, I'm sorry, if the board is going to deviate from the district court's construction. [00:29:00] Speaker 04: And as Judge Chen [00:29:02] Speaker 04: I believe pointed out fairly well, this happened here, because in the institution decision, the board has already decided that they did not need to go with lexicography. [00:29:11] Speaker 02: There is one factual dispute or issue between this case and Qualcomm. [00:29:15] Speaker 02: I believe in Qualcomm, the claim construction issue was in dispute between the two parties. [00:29:21] Speaker 02: And here, Leila Tsai is contending that it was undisputed. [00:29:26] Speaker 02: You proposed a construction. [00:29:28] Speaker 02: They accepted it. [00:29:29] Speaker 02: And then the board, on its own, [00:29:32] Speaker 02: went off and migrated away and located its own construction. [00:29:37] Speaker 04: That is true in that the exact procedural posture differs there. [00:29:42] Speaker 02: And so is that a distinction with a real difference in that, at least in Qualcomm, the board was put to the test. [00:29:51] Speaker 02: It had to confront the claim construction. [00:29:53] Speaker 04: We submit that it does not. [00:29:55] Speaker 04: The reason being, once again, claim construction is a matter of law. [00:30:00] Speaker 04: The board's obligated to follow the Phillips. [00:30:01] Speaker 04: They need to follow the law and apply the law. [00:30:04] Speaker 04: And we believe that's what they did. [00:30:07] Speaker 04: They do need to provide the parties an opportunity to address construction if they're going to deviate. [00:30:14] Speaker 04: whether it's from an agreed upon construction or from two different constructions from the parties, but still they come up with a third construction. [00:30:22] Speaker 00: Mr. Weinstein says that this is wrong in light of the whole structure and purpose of the IPR process. [00:30:29] Speaker 00: Is there any authority that you can point us to within the board that gives the board the power to say no even though the parties may agree on a claim construction? [00:30:42] Speaker 04: or even though the parties may not have raised a particular claim construction of the board chooses to adopt i'm not aware of things i do process certainly understood and i'm not aware of affirmative statement that says the board may deviate but what i'm aware of is that is the uh... [00:30:58] Speaker 04: are the decisions that say that the board may deviate in terms of Qualcomm. [00:31:03] Speaker 04: I'm aware of the rule that says that the board is required to consider the district court's construction, but I think this clear inference from that is that they're not obligated to follow that construction. [00:31:17] Speaker 00: No, but the question would be are they obligated to follow it in the assumption [00:31:21] Speaker 00: that the parties agree with the district courts. [00:31:23] Speaker 04: Well, I think, again, there's still nothing that obligates the board to do that. [00:31:27] Speaker 04: There's no case law that supports that. [00:31:29] Speaker 04: There's no inference that would require it. [00:31:33] Speaker 00: Well, a district court certainly wouldn't be required to do that. [00:31:35] Speaker 04: Right. [00:31:35] Speaker 04: If the district court thought that the parties were wrong, [00:31:38] Speaker 04: with their construction, then the district court would be, in fact, obligated to follow the law and come up with the proper construction. [00:31:44] Speaker 04: We believe the same applies to the board. [00:31:46] Speaker 04: There's nothing that limits the board in that way. [00:31:51] Speaker 04: And there's certainly the legal precedent, we believe, that allows for that to happen. [00:31:57] Speaker 04: And so that's what the board did here. [00:32:00] Speaker 04: Now, the board, I don't want to belabor this point, but we do put into our brief that the board did consider the district court's construction. [00:32:08] Speaker 04: the construction is the same construction that Intel offered. [00:32:12] Speaker 04: Intel offered it for the same reasons based on the lexicography that we submit exists in column three of the patent. [00:32:21] Speaker 04: And so they had the reasoning, they had the actual construction, they had the board's opinion, they had the parties telling the board multiple times that the district court had come up with this opinion, and they said that they had reviewed the entire record. [00:32:37] Speaker 04: So with that, I believe there's more than sufficient evidence to support the conclusion that the board did in fact consider the district court's construction and that they were not obligated to say it out loud in a way. [00:32:54] Speaker 02: Getting back to whether the patent board here unilaterally applied its own claim construction [00:33:02] Speaker 02: As I talked about with your friend on the other side, it appeared to me that the institution decision, the patent board, was applying [00:33:11] Speaker 02: two different understandings of force region to find and found that Oda appeared to meet both of those different understandings of force region. [00:33:23] Speaker 02: Would you say that your petition presented two different proposed constructions or understandings of force region? [00:33:33] Speaker 04: We did. [00:33:34] Speaker 04: We actually presented three. [00:33:36] Speaker 04: We presented the construction that the district court had followed and that Intel has advocated for. [00:33:41] Speaker 04: At the time of the petition, counsel for VLSI was not agreeing to that construction, but had offered at the district court a broader construction. [00:33:51] Speaker 04: And so in our petition we said, we explained, or Intel explained, that OTA discloses a force region under the district court's construction and under the construction [00:34:01] Speaker 04: uh... other argued for by council for real estate and effectively provided a third construction which was simply that that there's no doubt or there should be no dispute that uh... force region includes that area under the bond had and that would disclose is that as well that's all described in the actual final britain decision of uh... of the board uh... where they were they laid out that that uh... intel had offered or had at that time [00:34:29] Speaker 04: submitted evidence that OTA discloses a force region under any of these three constructions. [00:34:34] Speaker 04: And so when the board in its initial determination to institute stated that, okay, OTA does disclose, or at least the preliminary evidence shows that it discloses a force region under a broader construction, but also under this construction that it requires a die attached, that was again, I think, consistent with what Intel had put into the petition. [00:34:57] Speaker 04: We submit that actually carries forward to the final determination as well, where yes, the board determined that it did not need to find lexicography, that the forest region can be construed simply as the region under the bond path. [00:35:14] Speaker 04: But as we've put into our brief, they went further, and on page 30 of their appendix, [00:35:20] Speaker 04: They basically, or they stated that ODA discloses a force region as well, if you include the diatach requirement. [00:35:29] Speaker 04: And when a reference discloses a limitation under any of the possible constructions, then debate over which is the correct construction becomes less material. [00:35:38] Speaker 04: And so the board had confronted with this construction dispute. [00:35:46] Speaker 04: They made a preliminary determination. [00:35:48] Speaker 04: They then followed it with the final determination that yes, the force region includes the area under the bond pad. [00:35:54] Speaker 04: No, the force region should not be limited to the specific embodiment of figures one and two, and that they didn't need to determine anything more because that resolved the disputes before it under the vivid and NIDAC cases. [00:36:08] Speaker 04: Then the board was within its, well within its reason not to construe the claim any further and simply to determine [00:36:15] Speaker 04: that ODA does disclose this force region under any of these potential constructions. [00:36:21] Speaker 04: And that makes sense. [00:36:23] Speaker 04: Judge Bryson asked about, what's the difference between a die attach and the wire bonding of ODA? [00:36:30] Speaker 04: There is no difference. [00:36:31] Speaker 04: Wire bonding is one of the most typical and historically known forms of a die attach. [00:36:38] Speaker 04: It was the base. [00:36:39] Speaker 00: That's a critical question. [00:36:40] Speaker 00: And if, in fact, die attach, as used in the patent, never mind what [00:36:45] Speaker 00: shows up in an electrical engineering dictionary. [00:36:49] Speaker 00: But if, as used in the patent, die-attach includes wire bonding, game is over because the references on column five and six then line up with the reference on column three. [00:37:03] Speaker 00: That's correct. [00:37:04] Speaker 01: There's no reason. [00:37:05] Speaker 00: And yet we have no guidance from the parties or anyone else, as far as I can see, as to [00:37:12] Speaker 00: whether the patent is using the term die attach in the broad sense that you're advocating or whether there is so much authority out there saying die attach means something that excludes wire bonding that you can't read these three references as consistent. [00:37:31] Speaker 04: I think your honor has put your finger on the point. [00:37:34] Speaker 04: I believe, though, we have submitted that the die attach in the patent itself very clearly covers wire bonding. [00:37:41] Speaker 04: The patent is all about what happens when you put pressure onto a bond pad during this attach or bonding process. [00:37:49] Speaker 00: And wire bonding, I take it, does impose pressure. [00:37:53] Speaker 00: Yes, that's right. [00:37:54] Speaker 04: You have to individually put a wire onto that bond pad and make that physical and electrical connection. [00:38:01] Speaker 04: You have to put pressure down on that. [00:38:03] Speaker 04: In fact, Oda talks about that. [00:38:05] Speaker 04: That is the point of Oda. [00:38:07] Speaker 04: There are pressures underneath the bond pad, just like the 552 patent describes. [00:38:12] Speaker 00: Well, where in the four corners of this patent would I find something that would tell me that die-attach includes wire bonding? [00:38:19] Speaker 04: Well, I think the most explicit statement is on column two of the patent that specifically states that the bond pads include wire bond pads. [00:38:32] Speaker 00: So if you look at that, there's no doubt that that's true. [00:38:35] Speaker 00: But the question is what does, does die attach a subset of all bonding mechanisms? [00:38:42] Speaker 04: I, I, I, uh, I have only that proportion of the, of the patent that specifically I believe makes the connection to wire bonding. [00:38:50] Speaker 04: The only other portions you've noted, they're diataches mentioned, but generally it's within specific examples. [00:38:58] Speaker 04: And in those examples, it is an example of what they call a flip chip, but there's nothing in the patent that would support the inference that they're trying to somehow distinguish from wire bonding, which they do mention in column two. [00:39:14] Speaker 04: Column two describes the types of bond paths that are going to be subject to forces. [00:39:20] Speaker 04: underneath them when there is this attachment or bonding process. [00:39:25] Speaker 04: The rest of the patent, when you get to the lexicography on column three, yes, it is in the context of that figures one and two, but it's not limited to that. [00:39:35] Speaker 04: And then, of course, there's a reference to the force region later, which talks about a similar other processes. [00:39:41] Speaker 04: a more, in a broader way. [00:39:43] Speaker 04: And I believe the board in this instance correctly found that there's just nothing in this patent that would support the conclusion that the force region should exclude wire bonding. [00:39:55] Speaker 04: And that includes when it has this definition of a dyadetect. [00:39:59] Speaker 02: Well, the language of the force region limitation itself [00:40:05] Speaker 02: just simply says, at least under the bond pad, and then characterized by being susceptible to defects due to stress applied to the bond pad. [00:40:12] Speaker 02: And the board, in fact, applied all of that claim language in the context of ODA at A30, and then found, petitioner alleges and sufficiently shows, that ODA teaches the subject matter of [00:40:29] Speaker 02: claim element 1b because ODA teaches a force region directly under the bond pad by disclosing that the region under the bond pad is susceptible to defects, i.e. [00:40:37] Speaker 02: cracks, as a result of the load of a needle during wire bonding. [00:40:43] Speaker 02: And then moreover, the 552 patent also describes force region as, quote, a region in which the stack of interconnect layers are susceptible to stress from the bond pad due to assembly or other processes, end quote, column six. [00:40:57] Speaker 02: So in that way, the board already made a particular fact finding about what ODA's wire bonding can do to a force region. [00:41:09] Speaker 02: Yes. [00:41:11] Speaker 02: So what I'm wondering is, would you think that perhaps the best understanding of force region is just simply a restatement of all of the words in that force region limitation? [00:41:25] Speaker 02: not just at least under the bond path, but at least under the bond path characterized by being susceptible to. [00:41:31] Speaker 04: I think that is a fair definition for force region. [00:41:35] Speaker 04: In this way, there's more than one way to make a construction, especially when you're only obligated to construe a term necessary to decide the issues before you. [00:41:45] Speaker 04: But that's correct. [00:41:46] Speaker 04: The force region is under the bond pad. [00:41:48] Speaker 04: It's characterized by being susceptible to stress. [00:41:51] Speaker 04: We had submitted that it is as a part of this die attached. [00:41:56] Speaker 04: And this is when you get stresses on the bond pads. [00:41:59] Speaker 04: When you attach that chip, that die, to another component, whether it's a substrate or a circuit board, you're putting physical pressure on those chips. [00:42:10] Speaker 04: And that is the same for flip chip bonding, which is the figures one and two example, or wire bonding, which is ODA. [00:42:18] Speaker 04: In any of those instances, you're putting that physical [00:42:21] Speaker 04: and electrical pressure on that bond pad, meaning you're going to have the stresses underneath the bond pad. [00:42:28] Speaker 04: And the last thing I'll say about that is this is not a dispute, that the teachings of the 552 pattern are applicable to wire bonding. [00:42:37] Speaker 04: Their expert has agreed with that. [00:42:39] Speaker 04: So what we're really talking about is this attempt to redefine diattach to exclude wire bonding. [00:42:46] Speaker 04: And we believe the board very clearly, correctly held that that's not excluded. [00:42:52] Speaker 04: And that's all they had to find because of what Oda discloses. [00:42:56] Speaker 02: You have a few seconds left to talk about being used for electrical interconnection. [00:43:00] Speaker 04: I will do that. [00:43:00] Speaker 04: I will do that. [00:43:01] Speaker 04: I have two points that I'd like to make very quickly, if I could, Your Honors. [00:43:05] Speaker 04: The first point about claim 20. [00:43:08] Speaker 04: is that it's an odd claim. [00:43:11] Speaker 04: I think we can all agree to that. [00:43:16] Speaker 04: It's a method claim for an integrated circuit, but it's not a method for using that circuit. [00:43:21] Speaker 04: It's not even a method for making that circuit. [00:43:24] Speaker 04: Instead, it's a method for designing an integrated circuit in which you have to start with the circuit design, then you move to developing a layout for the integrated circuit, [00:43:36] Speaker 04: You have to modify that layout. [00:43:37] Speaker 04: And then the last limitation is you have to make the chip, which of course may take a factory and a few billion dollars, but that's the way the claim is written. [00:43:46] Speaker 04: The claim specifies that a portion of the metal containing inter-connect layers in that layout file are to be used for electrical interconnection. [00:43:55] Speaker 04: A layout file simply contains representations of the components of an integrated circuit. [00:44:00] Speaker 04: Those representations don't carry electricity. [00:44:02] Speaker 04: They're simply 2D geometric shapes. [00:44:06] Speaker 04: Instead, the representations of the metal components are shown being used for electrical interconnection in such a design when they are designed with a representation of metal between them to directly connect them. [00:44:19] Speaker 04: And that's all the claim requires. [00:44:21] Speaker 04: And that's what Kanaoka shows with M1 and M2. [00:44:25] Speaker 04: The M1 is portion of the metal containing intercut layers [00:44:29] Speaker 04: No dispute, I believe, in two as well. [00:44:32] Speaker 04: They are electrically connected together. [00:44:34] Speaker 04: Oda, I'm sorry, Kanaoka says that twice. [00:44:38] Speaker 04: We believe deliberately to say that they are connected with that metal. [00:44:43] Speaker 00: But what do we do about the word used? [00:44:46] Speaker 00: Used for electrical interconnection. [00:44:49] Speaker 00: That sure sounds like an active description of something that involves electricity. [00:44:56] Speaker 00: And as I understand it, your question is this [00:45:00] Speaker 04: the structure does not have to have to use for electrical connection. [00:45:07] Speaker 04: The way we would put it is this. [00:45:10] Speaker 04: M1 is used to connect to M2. [00:45:14] Speaker 04: uh... the interconnection is with these views called t h one ph uh... uh... these three holes uh... in one is used for that electrical interconnection it's a deliberate process of the design this is again we're in a layout file so uh... at one point bill as i was saying uh... uh... below i was i will uh... uh... that this uh... they were saying the claim required that you be connected to active circuitry but that doesn't [00:45:43] Speaker 04: that doesn't fit with a layout file. [00:45:46] Speaker 04: It's certainly a distinct requirement that's actually affirmatively there in claim one, which is not such an odd method claim. [00:45:55] Speaker 02: But what if the claim just means at least available for electrical interconnection? [00:46:02] Speaker 04: Well, again, we would submit that Kanaoka is. [00:46:05] Speaker 04: Kanaoka, again, M1 is not just available for electrical interconnection. [00:46:11] Speaker 04: It is there connected to M2. [00:46:14] Speaker 02: We conclude that the type of electrical connection going on in Kenoka is not the kind of electrical interconnection that's being contemplated in this claim in that the so-called electrical connection going on in Kenoka is really two metal dummy lines being connected with a piece of metal. [00:46:36] Speaker 02: And therefore is completely unavailable, because it's insulated collectively, it's completely unavailable for use to be electrically interconnected with outside devices. [00:46:50] Speaker 04: I would say a couple points to that. [00:46:52] Speaker 04: First, it's not the claims, we should submit that that's not what the claims require. [00:46:57] Speaker 04: It simply says used for electrical interconnection. [00:47:03] Speaker 04: the additional requirement that is used for electrical interconnection to something that is capable of being an active component or of pushing electricity, we simply do not see in that claim. [00:47:14] Speaker 02: What about the prosecution history where the amendments that were made to Claims 20 and to Claim 1 include all of this [00:47:22] Speaker 02: new requirement about electrical interconnection. [00:47:25] Speaker 02: Claim one is much more clear about this, I think we could all agree. [00:47:28] Speaker 02: And in the remarks section, the applicant said, for this exact same reasons why claim one is now patentable over the prior art, claim 20 is likewise patentable over the prior art. [00:47:40] Speaker 02: In that way, equating [00:47:42] Speaker 02: the limitations that were added in Claim 20 to the more specific limitations added in Claim 1. [00:47:48] Speaker 04: The similarities between Claim 1 and Claim 20 in terms of this amendment was that they both amended the claim to make it clear that these portions are no longer connected to the bond path, but there's more to those amendments than just [00:48:04] Speaker 02: the mere phrase not connected to bond path? [00:48:07] Speaker 04: Well, the question then becomes as a result of what? [00:48:11] Speaker 04: In claim one, it says as a result of being used for electrical interconnection to the active circuitry. [00:48:16] Speaker 04: In claim 20, it simply just says as a result of being used for electrical interconnection, not directly connected to the bond path. [00:48:24] Speaker 04: So in both instances, you've done what we believe the patent holder intended to do to distinguish from the prior art. [00:48:31] Speaker 04: You have decoupled functionally [00:48:34] Speaker 04: M1 and M2 or the portions that are not directly connected to the bond pad from that bond pad. [00:48:39] Speaker 04: There's an important point that they wanted to make. [00:48:42] Speaker 04: It's not a structure that goes all the way up to the bond pad. [00:48:44] Speaker 04: In fact, you decouple it from that bond pad. [00:48:47] Speaker 04: So you have made them functionally independent. [00:48:51] Speaker 04: But then they amended the claim slightly differently in 1 and 20. [00:48:56] Speaker 04: We believe that's an important distinction. [00:48:58] Speaker 00: I have a question about the amendment that was made. [00:49:01] Speaker 00: The amendment involved, with respect to 20, the language that we've been talking about, containing interconnect layers underlying the first bond pad and not electrically connected to the first bond pad, and then as a result of being used for electrical interconnection not directly connected to the bond pad. [00:49:23] Speaker 00: Given the purpose, as you are explaining it, of the amendment, why wouldn't it have been fully sufficient to stop at the end of the words and not electrically connected to the first bond pad, period, and not added as a result of being used for electrical interconnection, not directly connected to the bond pad? [00:49:45] Speaker 00: Put it another way, what is that last clause starting after first bond pad doing? [00:49:53] Speaker 04: It's still requiring something of that first portion. [00:49:57] Speaker 04: It's not connected to the bond pad as a result of being used for the electrical interconnection to something else. [00:50:05] Speaker 04: In this case, it says not directly connected to the bond pad. [00:50:08] Speaker 04: It's already said it's not connected to the bond pad. [00:50:11] Speaker 04: That's right. [00:50:11] Speaker 04: It does repeat itself twice there. [00:50:13] Speaker 00: It doesn't seem to me to serve any purpose. [00:50:17] Speaker 04: I guess what I would say is the second time it's talking about the bond pad, it says not directly connected to the bond pad. [00:50:23] Speaker 04: And so I think it's a fair inference to say as a result of being used for electrical interconnection requires that direct connection, literal direct metal connecting that portion to something else. [00:50:36] Speaker 00: But you've already disposed of the direct or indirect connection with the words not electrically connected to the first bond pad. [00:50:43] Speaker 00: If you put a period after that, [00:50:45] Speaker 00: You're covered, direct or indirect. [00:50:47] Speaker 04: I guess the way that you wouldn't be covered is if you just simply had that portion like M1 not connected to anything else. [00:50:54] Speaker 04: If M1 was just floating all by itself as a dummy line or whatever, then it would not be connected, electrically connected to anything else. [00:51:03] Speaker 04: And so that's the distinction. [00:51:05] Speaker 04: I'm not sure it adds a whole lot. [00:51:07] Speaker 04: I think, though, it is different than claim one. [00:51:10] Speaker 04: It is not an affirmative requirement that there's be an active pairing of electricity or active circuitry. [00:51:16] Speaker 04: OK, thanks very much. [00:51:17] Speaker 04: Thank you, sir. [00:51:22] Speaker 02: All right, two minutes. [00:51:25] Speaker 03: OK, I'll try to be very brief. [00:51:27] Speaker 03: Just on the being used for electionally in connection, they've never disputed my analogies with the pennies. [00:51:32] Speaker 03: It's like pennies under a table. [00:51:33] Speaker 03: They've never said there's any intellectual use. [00:51:35] Speaker 03: That just can't be being used for intellectual interconnection. [00:51:37] Speaker 03: Let me try to address the key issues on force region. [00:51:40] Speaker 03: Judge Chen, I believe you have, you're maybe making a potential inference that if the institution says X as to whether Oda's a diet hatch, I draw the different inference that if the final decision doesn't say that, it suggests it's not supported by the record. [00:51:55] Speaker 03: And I'm- You say it doesn't say that. [00:51:57] Speaker 03: What is the that? [00:51:57] Speaker 03: I thought you were alluding both in your questioning of me and my friend here, that the [00:52:03] Speaker 03: Board in the institution decision made a potential finding that ODA is exhibiting forces during a die attach. [00:52:11] Speaker 03: It did not make that finding in the final written decision. [00:52:15] Speaker 03: And so I would draw an inference that the record did not support that. [00:52:18] Speaker 03: And this may get to the issue of appeals. [00:52:21] Speaker 01: Can I ask you this? [00:52:23] Speaker 01: If we agree with the board that the Intel district court construction is incorrect, then what arguments do you have left? [00:52:30] Speaker 03: I would repeat all the things I said before about. [00:52:34] Speaker 01: But that's what I didn't understand what you were talking about the last time, because you were talking about all the procedural stuff that didn't allow them to deviate. [00:52:41] Speaker 01: Assume I disagree with you on everything, and that the board was allowed to deviate. [00:52:46] Speaker 01: It didn't have to adopt the district court. [00:52:47] Speaker 01: It's not bound by your agreement. [00:52:50] Speaker 01: Then what's left in this case on force region? [00:52:52] Speaker 03: So Amherst, I think their construction is plainly wrong. [00:52:55] Speaker 01: Uh, it's, that's, it's, uh, did you propose an alternative construction other than the district court line? [00:53:01] Speaker 03: No, we never did. [00:53:03] Speaker 03: We always, uh, agreed with Intel's district court construction. [00:53:06] Speaker 01: So we don't have another construction that you say they should have adopted in lieu of the district court line? [00:53:12] Speaker 03: No, all I can say is the, uh, they should have adopted district court construction and the construction they did adopt is wrong. [00:53:17] Speaker 02: But what if, what if force legion is defined by the limitation language of that additional limitation language? [00:53:25] Speaker 03: I would submit, Your Honor, that that would be a disfavored construction under Amherst. [00:53:29] Speaker 03: And I believe the case is similar. [00:53:31] Speaker 02: But what if we conclude that's the correct construction? [00:53:34] Speaker 02: Then it's an affirm. [00:53:37] Speaker 03: If you reject all of my other arguments, it would be an affirm. [00:53:41] Speaker 03: About SAS? [00:53:42] Speaker 03: Well, I really think if this court holds that a board does not need to address and give weight to a district court claim instruction, [00:53:51] Speaker 01: We're not going to hold that. [00:53:53] Speaker 01: We're going to hold that they did because they considered it the actual construction being urged. [00:53:59] Speaker 01: Sure enough. [00:53:59] Speaker 01: They may not have actually typed out, by the way, we looked at this. [00:54:05] Speaker 03: I do think there's a distinction between a party's construction and district court's construction. [00:54:08] Speaker 03: So that's, that's what I would say to that. [00:54:11] Speaker 03: I briefly, I think on appendix 30, if you read appendix 28 to 30, there's no possible reading of the final written decision that would suggest that the board found [00:54:20] Speaker 03: that OTA is exhibiting forces during a diatach. [00:54:23] Speaker 03: It is simply applying its own construction. [00:54:25] Speaker 03: And then Judge Bryson, you asked a lot of questions about flip chip, diatach versus wirebombing. [00:54:31] Speaker 03: I think there's a vast record on that question. [00:54:34] Speaker 03: And I think so. [00:54:35] Speaker 00: Well, but does any of that vast record tell us what the patent drafters thought they were encompassing with the term diatach? [00:54:43] Speaker 00: I think there are clues. [00:54:47] Speaker 03: So the patent is in the main. [00:54:49] Speaker 03: It's about flip chip. [00:54:50] Speaker 03: And in flip chip, sometimes you have wire bonds, but usually you don't. [00:54:54] Speaker 03: Usually the connections and the die attach, it's a single step. [00:54:58] Speaker 03: And so when it's talking about flip, die attach in the context of flip chip, it's definitely not talking about wire. [00:55:03] Speaker 03: That's a pressure bond? [00:55:04] Speaker 03: Yes. [00:55:05] Speaker 03: Yes. [00:55:05] Speaker 03: Heat and pressure. [00:55:07] Speaker 03: OK. [00:55:07] Speaker 03: Are there any other questions? [00:55:08] Speaker 03: If not, I appreciate your honor's time. [00:55:10] Speaker 02: Thanks very much. [00:55:11] Speaker 02: The case is submitted.